OPEN Act (OPA) draft language released — The big news in the US this week was the public release of draft legislation for an alternative to SOPA and PROTECT IP. Thoughts? I’ll have a post on the language next week, most likely.

PIPA/SOPA: Responding to Critics and Finding a Path Forward — Daniel Castro of the Information Technology & Innovation Foundation addresses criticisms of rogue sites legislation, paying special attention to technological criticisms of the site blocking provisions of those bills. Highly recommended.

What I Know… Explaining Piracy’s Profit Pyramid — Independent filmmaker Ellen Seidler provides this illustrated guide to how cyberlockers and linking sites profit off misappropriating the work of others. “The only way today’s crop of cyberlockers can be forced to institute similar content ID systems is if their current business model becomes unsustainable. For that to happen, like Youtube, they too will need to face the threat of litigation and/or the long arm of the law. At this point, that puts the ball squarely back in the lap of Congress.”

Workspace: Christine Boylan — I love reading about individuals describing their creative process. Here, screenwriter John August interviews Christine Boylan, a writer and television producer who has worked on Leverage and currently co-produces Castle.

27 Comments

OPEN Act (OPA) draft language released — The big news in the US this week was the public release of draft legislation for an alternative to SOPA and PROTECT IP. Thoughts? I’ll have a post on the language next week, most likely.

OPA! I married into a Greek family, so that’s something I find myself saying a lot. But hey, If they can shorten the already-an-acronym PROTECT IP Act into the meta-acronym PIPA, no reason why you can’t do the same. 🙂

OPA doesn’t sound like it’ll get the job done: slow process, located in D.C., no local actions, not enough remedies, etc. The bill seems to be more about preserving Google’s bottom line than it does to be about minimizing online piracy.

This OPEN Act nonsense does not acheive a single thing… other than making it even more impossible, lengthy, and out-of-reach-costly to bring a non-action action that does nothing but delay judgment with zero reprecussions. If this is adopted, we (creators) may as well hang it up and go on the public dole…

Is this some kind of joke? Because no reasonable person could possibly believe that this proposed language is a serious and satisfactory alternative for rights holders, right?

I mean, aside from everything else that is wrong with it (and there’s so much wrong with it), look at this requirement:

“(5) REFERRALS TO PRESIDENT; TERMINATION FOR DISAPPROVAL.
(A) IN GENERAL. If the Commission determines under paragraph (1) that an Internet site dedicated to infringing activity is operated or maintained in violation of subsection (b), the Commission shall promptly submit to the President a copy of a determination, the record upon which the determination is based, and any order issued under subsection (f) pursuant to the determination.”

Can they possibly make it more difficult than to have to submit each and every decision to the President of the United States for approval or veto? I got to this point and started laughing out loud, that’s how absolutely ludicrous it is.

Between that, and having to run to the Commission ever 14 days to renew a tootless cease & desist order, to allowing any number of outside parties to intervene and drag the procedures out, to giving payment providers and advertising networks so many outs and affirmative defenses that it amounts to no remedy at all, this entire thing is little more than a poorly crafted joke.

In fact, it’s the worst drafted piece of language that I think I’ve ever seen. I guess this is what you get when you allow wiki-style legislation from people who neither understand policy or law — a hot mess.

“In conducting an investigation … the Commission shall consult with, and seek advice and information from, the Attorney General, the Secretary of State, the Secretary of Homeland Security, the Secretary of Commerce, the Intellectual Property Enforcement Coordinator, the United States Trade Representative, and such other officials as the Commission considers appropriate.”

I’m sure having to first consult with all of those cabinet level advisors will definitely speed the process along. Congress doesn’t even have an obligation that onerous when acting.

Totally agree. They need to fix copyright’s crazy long duration first. For instance reducing copyright duration to something more reasonable like 30 years. This would encourage rights holders to continue to create and innovate rather then sitting on the same old copyrights.

Could we please keep to the subject at hand? Copyright term length is an incredibly annoying red herring.

The de facto copyright protection term right now is about five minutes – if that. When – and only when – we’ve assured that creative works are not globally pirated the second that they are released (if not before), will any discussion as to how long the copyright protection term should be make any sense.

Apart from that, the claim that the current copyright term lengths mean that rights holders “sit on the same old copyrights” and create nothing new is just utter balls with no basis in reality.

Implicit in your comment is that both the DOJ and the DHS are incapable of conducting an investigation before taking action against a site like this. Now, I do not know if legally meaningful mistakes were made here with respect to the investigation, but it seems several sites that rail continuously against the entire notion of copyright use any and every opportunity to try and turn any mistake, no matter how trivial, into a “big bad government” issue.

Also implicit in your comment is that any action under our laws directed to websites such as this one is blatant censorship that does violence to the First Amendment. Perhaps this is true in some cases, but I do have to ask just what it is about this particular site that renders any action against it censorship?

The sealed extensions and lack of information regarding the proceedings is a good place to start. The fact that the domain was held for over a year by ICE with no information into its status makes me weary of all domain seizures in general. As I understand it, this seizure is supposed to be used in an investigation or stop criminal activity. There were no charges filed against the owner, so why did they keep it for over a year?

This is not, by any means, a trivial matter. The government seized a site and held it based on faulty evidence and lacking any way for the domain owner to reply and/or contest the proceedings of being called a pirate website. And if the investigation was found to be wrong, why continue to do things under lock and key despite the mistakes? And yet, despite all of the takedowns, has this stopped piracy and counterfeiting at all or will this just change the game as evidenced by taking down Napster, Grokster, Limewire or any other centralized P2P network?

lacking any way for the domain owner to reply and/or contest the proceedings of being called a pirate website.

The civil forfeiture statutes given an aggrieved party ample opportunity to contest the seizure and get their property back within 30 days if they can allege the proper criteria. If they didn’t do that, I can hardly see how that is the fault of the government.

It seems to me that you are much too quick on the draw to accept as the “gospel” truth what others may write who provide no substantiation or attribution whatsoever about where their information was obtained.

BTW, and as noted elsewhere in this section for comments, our laws provide means readily at hand to contest seizures (even of website domain names). Why the site apparently chose to not file a motion with the court immediately contesting the seizure escapes me entirely.

Then ICE treated the case as practically top-secret, filing all the court documents under seal, says Andrew Bridges, a partner at the Fenwick and West law firm in San Francisco who’s representing Dajaz1 pro bono.
“They kept getting extension after extension from the court under seal without showing me any papers whatsoever,” Bridges told CNET today.

Again, that is meaningless. One doesn’t even need access to the complaint or any other moving papers in order to make a motion for return of the property under the forfeiture statutes. They didn’t do that. So, again, I fail to see how that is the government’s problem.

I find what most interesting about the Internet is that is is fundamentally a technology which permits all the world’s knowledge and culture to become available to all the world’s people. It can do this with no practical technology limitations at all. There is no technological limitation of the Internet that wouldn’t allow you to have access to every single book ever written, every song ever recorded, any movie ever filmed.

Any limitation on the Internet is always entirely based on the legal system.

I think what we are seeing is people see this potential in the Internet and they aren’t liking the entertainment industries ideas of how to “stop” it. Piracy is probably not going to go away, with every lawyer and politician that comes up with a law to try to stop piracy, there is a technologist that devices a Internet protocol or architecture that trivially gets around the law or makes it difficult or impossible to enforce. The fundamental thing is computers and the Internet have made copying so easy, copying is literally in the nature (this text was probably copied into your computer’s memory in multiple places), trying to put restrictions on copying while still having an open and free Internet is like trying to defy physical and mathematical laws.

On top of this copyright is becoming increasingly controversial, in EU for instance there is a political party that has no platform whatever except weakening copyright and it managed to get seats in parliament.

So really, SOPA/PIPA/even OPEN miss the point and will probably not deter or even terribly inconvenience filesharers. The point is we need to rethink copyright entirely.

So really, SOPA/PIPA/even OPEN miss the point and will probably not deter or even terribly inconvenience filesharers.

Not that I disagree with everything that you’re saying, but I thought to nitpick this a little bit. This will make the internet a lot more dangerous to surf. The ability to spoof an address and have a hacker in the Ukraine pretend to be a major banking operation will make online commerce unsafe. What people are saying about “breaking the internet” is somewhat true. It doesn’t make piracy go away, and further limits the ability to trust DNS servers located in the US. So will this inconvenience filesharers? In the sense that filesharers and consumers alike will have to rely on a less trusted system that is more prone to viruses and malware attempts, then the answer is yes.

Any limitation on the Internet is always entirely based on the legal system.

This same amazing internet that you speak so highly of also allows people to conspire to commit murder, fraud, vandalism, embezzlement, theft, harrassment, money laundering, prostitution, engage in acts of terrorism, and violate children. If your point is that “having an open and free Internet” means having a lawless one, it’s a poor one.

So really, SOPA/PIPA/even OPEN miss the point and will probably not deter or even terribly inconvenience filesharers.

On the contrary, it will be incredibly effective, which is why the pro-piracy crowd is making so much noise about it. Not only will it wipe infringing sites off of the face of the easily accessible internet by eliminating them from search engines and preventing domain name resolution, it will also starve them at their source by choking off their revenue sources.

commit murder, fraud, vandalism, embezzlement
As if these things are the only problems on the internet that can be reigned in by adding new laws.

harrassment

Ah, even though cyber bullying is proven not to be something that occurs all that frequently online, add it to a list to try to make it bigger than it really is. Bravo. Note: Didn’t say it doesn’t happen, but you seem to believe that suddenly a new law is actually going to make the problem go away by making the law punish people more severely is ignoring reality.

Ah, the old child pornography routine. Instead of actually pursuing the ones creating such filth, it’s used to ram through bills that engage in censorship and show how little people actually care about the children. Tell me, how does going after a domain actually protect a child? How does a child get treatment for the abuse? How does a domain seizure not cause the ones who are criminals to scurry to darker parts of the internet before they’re caught? And the best question, how does a domain seizure prevent a cop from pursuing suspects around the world now? Obviously, the ICE has caught at least two rings from recent memory without domain seizures. When they DID go after CPers with domain seizures, they failed miserably (Mooo.com).

And yet, you say that the internet is currently lawless when most companies adhere to the DMCA, are prospering without domain seizures taking place, and have caused many artists and creators to invest in new ways to make sustainable businesses. Fascinating how that “lawlessness” allows for so much creation to occur.

On the contrary, it will be incredibly effective, which is why the pro-piracy crowd is making so much noise about it

You have engineers that tell you this is a fruitless endeavor and yet you rely on the words of Castro (an IT analyst) versus Paul Vixie ( Computer engineer – who stands to profit greatly from SOPA being passed but says it’s still a bad idea) ? Not a smart move. Also, on page 6 of the report, he makes DNS overly complicated for no reason. Having him discuss drug enforcement since it’s failed in the last 30 years shows his ignorance in both subjects. Castro’s words are noble, but they don’t pass the laugh test.

Not only will it wipe infringing sites off of the face of the easily accessible internet by eliminating them from search engines and preventing domain name resolution, it will also starve them at their source by choking off their revenue sources.

Uhm… Google doesn’t control the internet, nor does it take away the IP number to access the site. People can still get to the other site. What you’ve just done is force people to learn more technical skills to access what they could before. Further, there are already apps available to route around the damage that SOPA/PIPA can do. Even more, SOPA/PIPA causes more effort into a decentralized DNS server. Finally, legal tools such as TOR, which are used for liberating countries like Iran or Syria will now be used to access “rogue websites”. What’s the funniest part of this is the fact that the US government supports these uses while trying to create their own firewall. All the while, you are not stopping piracy. At all. You’re not causing it to go underground. At all.

Then you say that you’re starving the source of infringement, like TPB or something else? They get paid by Israeli advertisements. Unless you’re looking to increase third and fourth party liability, I doubt this will starve the old torrent sites that have been around. I doubt that it will do anything but stop newer sites from prospering without a league of lawyers. So you’ve cost the internet untold number in jobs because no one will invest in the US with SOPA/PIPA, there will be no new job creation, the lawyers profit greatly from this uncertainty and piracy hasn’t even gone down. How much more mitigating damage do you need evidence of before it’s realized that SOPA/PIPA is a bad bill that does not need to be a law?

Oh, one more thing, the American processors will more than likely be removed from most sites. Visa, Mastercard, Google, and Paypal would more than likely be taken off of their priorities in lieu of newer alternatives that are constantly popping up.

For writing a whole lot, you didn’t refute a single thing that I said. Unfortunately that’s the problem engaging Torrentfreak readers. The site gives them a lot of initial talking points, but when challenged, its readers have nothing further with regard to substantive replies.

And yet, you say that the internet is currently lawless

I said nothing of the sort. My response to Paul Smith was simply to illustrate that the panacea of the internet as he described it presents the same challenges as in real life. Ergo, real life laws must be applied to the internet. For those crimes and offenses involving intellectual property, it should be no different.

Google doesn’t control the internet

For all intents and purposes, it does. A story in Bloomberg on 11/9/11 noted that Google holds a 65.6% market share in search. When you factor in Yahoo and Bing’s shares, those three control 95.6% of the search engine market. For the Attorney General to effectively wipe a site off of the internet, all he or she has to do is have the court issue three orders. That takes about as much time as it requires to print them on the court’s laser printer.

nor does it take away the IP number to access the site

Good, I hope that the average user will have to keep track of changing IP addresses. That is frustrating and slow, which makes an excellent detterent. Additionally, the act allows for blocking of sites at the IP level too.

What you’ve just done is force people to learn more technical skills to access what they could before

Again, excellent. That would be the bill working as intended. I hope people have to resort to slow proxies, downloading at 1kb/s through Tor, and relying on shady DNS servers that are vulnerable to man-in-the-middle attacks.

there are already apps available to route around the damage that SOPA/PIPA can do

Not for long, because those are also subject to the bill as having no substantial purpose other than to facilitate infringement. It won’t be long before they are taken down too.

They get paid by Israeli advertisements.

Good, as long as they’re not getting paid by American sites, the bill is working as intended. And once you choke off payment from VISA, Mastercard, American Express, Discover, and Paypal, you can even reach those sites that don’t get American advertising dollars.

So you’ve cost the internet untold number in jobs because no one will invest in the US with SOPA/PIPA, there will be no new job creation, the lawyers profit greatly from this uncertainty and piracy hasn’t even gone down.

Nonsense conjecture and fear mongering without a single fact to back it up.

Again, that is meaningless. One doesn’t even need access to the complaint or any other moving papers in order to make a motion for return of the property under the forfeiture statutes. They didn’t do that. So, again, I fail to see how that is the government’s problem.

The deadline for the government to file the forfeiture claim came and went with nothing occurring. Everything is under seal, including how the government got the extension.

No copy of the order was given.
The motion papers for an extension were refused.
The government did not agree to give the domain owner a chance to be heard.
But the government was given extension after extension to silence this site.

The deadline for the government to file the forfeiture claim came and went with nothing occurring.

Meaningless. The forfeiture statutes don’t require an aggrieved party to wait until the government files its final forfeiture claim in order to make a request to get the property back. It allows for immediate release of any pre-forfeiture seized assets. Again, the aggrieved party did not bother to make that request, so it is not the government’s fault.

No copy of the order was given.

An aggrieved party doesn’t need a copy of an order to make their motion for release of the property. In fact, the conditions for release are wholly independent of anything that would be in an order.

The motion papers for an extension were refused.

Unimportant, as the conditions for release are not contingent on any other motion.

The government did not agree to give the domain owner a chance to be heard.

Presuming the domain owner wanted to be heard, and given the history of these seizures none do, all they had to do is file the request for release and the court would’ve had to grant a hearing. They didn’t file that request, so they can’t complain about a lack of a hearing.

But the government was given extension after extension to silence this site.

What does that have to do with the aggrieved party failing to file the request that would’ve given them a hearing and the immediate opportunity to get their property back? That’s right, nothing.

I said nothing of the sort. My response to Paul Smith was simply to illustrate that the panacea of the internet as he described it presents the same challenges as in real life. Ergo, real life laws must be applied to the internet. For those crimes and offenses involving intellectual property, it should be no different.

Which is a strawman in and of itself. How does it make sense to enforce real life murder laws on a game like WoW? Cyberbullying doesn’t actually occur often online. Then, you’re equating infringement and theft in the same sentence, which are not equivalent. The point that you’re blurring is to say that somehow the internet needs to have rules that are enforceable because they’re obsolete. Some of the laws proposed are impossible to enforce without collateral damage. Yet, your analysis of the dajaz1 situation is very telling of what you believe. The government should be able to stall their investigation for a full year without any consequences for their prior restraint of speech. Even when the site has fulfilled all of its duties to challenge the seizure, you believe this is the appropriate measure instead of an adversarial hearing within six months. That’s not how the law is supposed to work.

For all intents and purposes, it does. A story in Bloomberg on 11/9/11 noted that Google holds a 65.6% market share in search. When you factor in Yahoo and Bing’s shares, those three control 95.6% of the search engine market. For the Attorney General to effectively wipe a site off of the internet, all he or she has to do is have the court issue three orders. That takes about as much time as it requires to print them on the court’s laser printer.

So tell me, before the new millenium, who controlled the internet? Netscape? Microsoft? They can wipe out a spiderbot that finds a certain subject, but that doesn’t get rid of the material. At all. All you’ve done is convince people to stop using Google and find an alternative that is decentralized. As I speak, there are at least two alternatives to Google, and they are not Bing nor Yahoo. The search engine market has a number of alternatives and is very competitive, as it should be. We currently use HTML for most sites. Ever wonder why the Gopher protocol isn’t used? It’s because in 1993, the University of Minnesota decided to reserve the right to charge for it. So most people used the easier alternative. If Google does decide to begin censoring, people will use different alternatives.

Good, I hope that the average user will have to keep track of changing IP addresses. That is frustrating and slow, which makes an excellent detterent. Additionally, the act allows for blocking of sites at the IP level too.

There’s already an app that circumvents what you’re thinking.. Legislation will always be two steps behind the technology it wants to control. Meanwhile, it’s good to know that the DNSSEC system that was worked on will go to waste because of the people that don’t understand what it’s supposed to do (Like Castro).

That would be the bill working as intended. I hope people have to resort to slow proxies, downloading at 1kb/s through Tor, and relying on shady DNS servers that are vulnerable to man-in-the-middle attacks.

… So you want to internet to be slower because you can’t adapt to it? I find that highly questionable logic.

Not for long, because those are also subject to the bill as having no substantial purpose other than to facilitate infringement. It won’t be long before they are taken down too.

Ah, like the Iran and Chinese firewall, we should show the rest of the world how hypocritical our stance truly is by implementing SOPA and following those countries. How thoughtful of you.

Good, as long as they’re not getting paid by American sites, the bill is working as intended. And once you choke off payment from VISA, Mastercard, American Express, Discover, and Paypal, you can even reach those sites that don’t get American advertising dollars.

Since their inception, they’ve used Israeli advertisements. You didn’t know this? Odd…

Anyway, this won’t work as planned. With the 5 day turnaround, Mastercard and Visa hate SOPA. There’s not enough time to review issues of payment. So now, you’re putting more incentives for anonymized payment transfer. Also, you’re removing the American dominance of credit card payments. People will remove all three and go to a better alternative. Besides that, people have been wanting a reason to get rid of Paypal for years. So you’ll get your wish.

Now you’re putting all of the money transfers into innovators outside of the US, you haven’t stopped piracy, the US internet infrastructure is weaker than it possibly could be, the American people are mad at you, there’s no new money or investments from SOPA to copyright holders, and you’ve just enticed China to try to block the internet in a similar way. Great job breaking it, hero.

Nonsense conjecture and fear mongering without a single fact to back it up.

Now that’s the most laughable part of your statement. Here’s the skinny:

Congressional Budget Office –

– PIPA will cost taxpayers $47 million from 2012 to 2016
– The Justice Department would have to go out and hire 48 new people (22 special agents and 26 support staff)
– Annual cost will run about $10 million

Venture capitalists position summation – More than 80% of capitalists will not invest in SOPA USA on fear of too much liability. In total, up to $43 billion in investments would be invested in other countries, not the US.

Engineers – Onus on them to fix the internet and break 16 years of work. That really makes a lot of sense.

Lawyers – This is a no brainer. Small companies won’t be able to fight false claims in court and will have to lawyer up in order to build anything. You won’t have the garageband of innovation that’s occurring now, but will have to join larger companies or suffer a false claim that wipes you out.

It’s not fear mongering when most of the people on the internet, from human rights groups, to lawyers, to engineers (who don’t try to talk politics anyway) are against a bill. It’s called a very poorly thought out bill that does nothing to stop the problem it’s supposed to prevent.

How does it make sense to enforce real life murder laws on a game like WoW?

Reading comprehension please. If you conspire to commit murder while using the internet, or you hire a contract killer on the internet, the same penalty applies as if you did it in person.

Cyberbullying doesn’t actually occur often online.

The statistics contradict that, with the latest study showing that at least 17% of respondents being bullied online one or more times in the last 30 days. Greater than 20% of respondents admitted to being bullied online at least once beyond those thirty days.

Then, you’re equating infringement and theft in the same sentence, which are not equivalent.

Not according to the legal system. For instance:

Dowling vs. United States, where the court noted that infringement fits “awkwardly with the language Congress chose — “stolen, converted or taken by fraud” — to describe the sorts of goods whose interstate shipment § 2314 makes criminal.”

MGM vs. Grokster, where the court noted that: “unlawful copying is no less an unlawful taking of property than garden-variety theft.”

Additionally, the Copyright Act preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” According to the case law, courts have found the following causes of action preempted by the Act – conversion, theft of services, and theft of satellite signals. Notice the trend?

Finally, the language of “stealing” has been the principal metaphor for copyright infringement as early as the 1600s, equating it with theft of all sorts.

The government should be able to stall their investigation for a full year without any consequences for their prior restraint of speech. Even when the site has fulfilled all of its duties to challenge the seizure, you believe this is the appropriate measure instead of an adversarial hearing within six months. That’s not how the law is supposed to work.

Please don’t mischaracterize what I wrote. All I mentioned was that a processed existed by which the website owner and his or her attorney could directly petition the court for immediate release of the property and force the court to render a decision. Under the best circumstances, they could’ve got their property back within 60 days. Why they chose not to do so for more than a year is inexplicable. Does the government share some culpability in its actions? Sure. Can that be taken care of through appropriate litigation? Of course. Does that excuse poor lawyering on behalf of the website? Not in the least.

So tell me, before the new millenium, who controlled the internet? Netscape? Microsoft?

If your point is that we can’t make laws because things change, then it’s a poor one.

They can wipe out a spiderbot that finds a certain subject, but that doesn’t get rid of the material. At all. All you’ve done is convince people to stop using Google and find an alternative that is decentralized.

It gets rid of the material for the overwhelming majority of people who won’t be able to find it on the three search enginges that comprise 95.6% of the market. And that’s all that is needed in most of the cases.

As I speak, there are at least two alternatives to Google, and they are not Bing nor Yahoo. The search engine market has a number of alternatives and is very competitive, as it should be.

4.4% of the search market is not competitive. And if any of those numerous alternatives that you speak of becomes prevalent for piracy-related searches, then an order can be issued for them too. It really takes no time at all to wipe these search links.

We currently use HTML for most sites. Ever wonder why the Gopher protocol isn’t used? It’s because in 1993, the University of Minnesota decided to reserve the right to charge for it. So most people used the easier alternative. If Google does decide to begin censoring, people will use different alternatives.

According to Google’s own most recent transparency report, it already censors — responding to nearly 2/3 of requests to remove content. Yet it has a 65.6% market share. Clearly, that doesn’t deter the public.

There’s already an app that circumvents what you’re thinking..

Again, perfect. The more software people have to download, install, and keep updated, and the more “automatic proxies” they have to go through the better. The more convoluted and slow the process becomes, the more of a deterrent it is.

Ah, like the Iran and Chinese firewall, we should show the rest of the world how hypocritical our stance truly is by implementing SOPA and following those countries. How thoughtful of you.

Oh yes, I was waiting for the Chinese firewall reference. The last piece of ammunition in a Torrentfreak reader’s toolbox once they’ve exhausted everything else. As if preventing access to infringing material (which is not protected speech) is even comparable.

So now, you’re putting more incentives for anonymized payment transfer. Also, you’re removing the American dominance of credit card payments. People will remove all three and go to a better alternative. Besides that, people have been wanting a reason to get rid of Paypal for years. So you’ll get your wish.

Like I’ve mentioned time and again, excellent! I hope people have to seek out small, untrusted, shady anonymous payment transfers that they have to entrust their money to. And I sincerely hope all piracy sites remove affiliation with Mastercard, VISA, Discover, American Express, and Paypal and have to be forced to rely on something else. As long as they are not using American resources, the bill is working as intended. And removing the American dominance of credit card payments? Please. Wiping piracy sites off of the face of the earth wouldn’t even register on their radars.

Now you’re putting all of the money transfers into innovators outside of the US

The bill working as intended. And I’m not surprised that you’d refer to someone willing to process transactions for illegal sites as innovators.

you haven’t stopped piracy

but it’s been made significantly more difficult for the public at large, and we have created lots of remedies to protect American creators from foreign businesses trying to profit by directing their infringing activity into the country.

Again, lots of noise but little substance. More evidence that the bill will be devastatingly effective.

The statistics contradict that, with the latest study showing that at least 17% of respondents being bullied online one or more times in the last 30 days. Greater than 20% of respondents admitted to being bullied online at least once beyond those thirty days.

I just said it doesn’t occur that often. You’ve just stated the exact thing we are in agreement about. A small number of online recipients aren’t bullied online.

“Dowling vs. United States, where the court noted that infringement fits “awkwardly with the language Congress chose — “stolen, converted or taken by fraud” — to describe the sorts of goods whose interstate shipment § 2314 makes criminal.””

Once again, stealing and infringement are not the same thing, and Dowling makes this argument. The Supreme Court did not condone his actions, but they stated explicitly that his infringement was of the Presley estate, invoking copyright law, not anti-theft statutes.

MGM vs. Grokster, where the court noted that: “unlawful copying is no less an unlawful taking of property than garden-variety theft.

The Supreme Court bucked on this one. They did not answer the question of infringement. Instead they formed a consensus around inducement. That’s a different standard that has caused a decentralization of filesharing.

Additionally, the Copyright Act preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” According to the case law, courts have found the following causes of action preempted by the Act – conversion, theft of services, and theft of satellite signals. Notice the trend?

Mmhmm… So discussion of reverse engineering, jailbreaking, and legal tools is lost on you because suddenly copyright is so inflexible as to not allow any other exceptions to copyright. Gotcha.

Finally, the language of “stealing” has been the principal metaphor for copyright infringement as early as the 1600s, equating it with theft of all sorts.

Ha! There is no theft that occurs when something is copied. By your logic all “stolen copies” are lost sales when there is no such case. By your very same logic, I’m infringing copyright by transferring music from my computer to my mp3 player. And that’s costing the industry every time I do it. By your logic, all copies are a lost sale. Is that the dreaded 1:1 ratio that the industry uses? The one that’s been debunked by the GAO, the “Media Piracy” report, and further studies from Michael D Smith and anyone with objective studies in piracy reports of the current decade?

There is currently a gap in the legal concept of theft and societal norms of filesharing/piracy. You might want to look that up as well as how people actually feel about piracy before suggesting the two terms [theft/piracy] are equatable.

Does that excuse poor lawyering on behalf of the website? Not in the least.

No, they did everything they had to do. They were not given an opportunity to present their case and your “analysis” obfuscates the issue by saying it’s their fault. They requested everything so that they could challenge the process and were denied at each turn. That is not bad lawyering, that’s censorship by the government since they don’t have a case against this website.

If your point is that we can’t make laws because things change [regarding who controls the internet], then it’s a poor one.

You say that Google controls the internet now. It’s uncertain who will control it in the future, but it may not be Google. It may be Searcher 5.0 or Small Search 3.1 who are the dominant search engines. But none of them control the internet as you seem to suggest. Google just has a lot of products, continuing to update what it offers.

It gets rid of the material for the overwhelming majority of people who won’t be able to find it on the three search enginges that comprise 95.6% of the market. And that’s all that is needed in most of the cases.

All evidence suggests the demand will go to other search engines and avenues. Congratulations, you make these search engines less relevant and bring on new search engines that won’t comply with this legislation.

4.4% of the search market is not competitive. And if any of those numerous alternatives that you speak of becomes prevalent for piracy-related searches, then an order can be issued for them too. It really takes no time at all to wipe these search links.

You’ve minimized what I stated after this. Regardless, most “piracy” searches don’t happen on Google search engines. They happen through Facebook or other social networks. In other words, censoring a search engine is useless when people already know what they want.

According to Google’s own most recent transparency report, it already censors — responding to nearly 2/3 of requests to remove content. Yet it has a 65.6% market share. Clearly, that doesn’t deter the public.

I’m not sure if you’re talking about the auto fill in or something else…

The more software people have to download, install, and keep updated, and the more “automatic proxies” they have to go through the better. The more convoluted and slow the process becomes, the more of a deterrent it is.

I don’t think you get it yet. You’re not making the process slow or convoluted at all. You’re making the people more savvy with technology to route around the “Firewall of America”. Same as Iran, India, or China. People will get around it and spread that information, making the blockage useless. But feel free to show where legislation has stopped piracy at all. Last I checked, the RIAA, through their sue em all tactics, caused piracy to increase from 30% to 70% penetration after that fiasco. I would love to see any data that legislation really works in any country. Hadopi? Three strikes in New Zealand? Has it stopped piracy yet?

Oh yes, I was waiting for the Chinese firewall reference. The last piece of ammunition in a Torrentfreak reader’s toolbox once they’ve exhausted everything else. As if preventing access to infringing material (which is not protected speech) is even comparable.

After seeing what you believe to be a “long and convoluted process” I find it highly questionable that you think this is a last salvo. But of course, I have more evidence to back up my argument of how this is a firewall. All you have are misguided notions that this will prevent piracy.

I hope people have to seek out small, untrusted, shady anonymous payment transfers that they have to entrust their money to. And I sincerely hope all piracy sites remove affiliation with Mastercard, VISA, Discover, American Express, and Paypal and have to be forced to rely on something else. As long as they are not using American resources, the bill is working as intended. And removing the American dominance of credit card payments? Please. Wiping piracy sites off of the face of the earth wouldn’t even register on their radars.

As people are accused of piracy, they will move their money elsewhere. Regardless of if they are actually pirates or not, they will find ways to utilize new technologies, diminishing the giants. Visa, Mastercard, AMEX, Paypal are pretty bad, but they work. But the newest merchants that arise will be more anonymized. Sure, you’ve pushed for an underground and more interest in crypto-currency. But this means the government can’t track it, and will go to newer services even for legal consumers. Less Europeans using Visa is a bad thing for Visa, hence they are against SOPA. Same with Mastercard, particularly with the 5 day turn around. So you’ve just caused American processors to lose dominance in the world. All for a problem you have yet to solve. Piracy. It’s amazing how you seem to believe this will actually work when even the card processors understand that this isn’t about piracy, and it further weakens their income.

The bill working as intended. And I’m not surprised that you’d refer to someone willing to process transactions for illegal sites as innovators.

Maybe because it harms domestic sites and those places that are already legal under US law. At this point, “rogue websites” is one of the largest misnomers of the entire SOPA process. There’s no judicial review before action is taken, and all of the main problems of the law come from how one sided it is. Maybe you don’t like the 5th Amendment, but there are a number of people that would enjoy a chance to face their accusers and have a right to be heard.

but it’s been made significantly more difficult for the public at large, and we have created lots of remedies to protect American creators from foreign businesses trying to profit by directing their infringing activity into the country.

*yawn* Right. You want to protect the MPAA and RIAA while the rest of the world is saying this is a bad idea, and the best you can come up with is “it’s more difficult”. Glickman would be proud.

So tell me, how come it hasn’t passed and it has so much opposition if it’s so “devastatingly effective” at preventing piracy? Any research to go with this thought process or is it all just you saying “this law is the best in the world?”

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.